Decided on July 31,2018

Kamlesh And Others Appellant


Rajeev Kumar Dubey, J. - (1.) This petition has been filed under Section 482 of the Code of Criminal Procedure against the order dated 8/8/2007 passed by Special Judge, Katni in Cr. Revision No.2/2007 (State of M.P. vs. Kamlesh & 6 others) whereby learned Special Judge set aside the order dated 05/02/2004 passed by JMFC Katni in Cr. Case No.494/2000 whereby learned JMFC discharged the applicants/accused from the charge punishable under Section 420 of the IPC and 3/7 of the Essential Commodities Act and remanded the case to JMFC with the direction to again pass a fresh order again after hearing both the parties.
(2.) Brief facts of the case which are relevant to the disposal of this case are that on 4/6/1999, on the information of the informant that applicant no.5 Balmukund owner of firm M.B.M.C. Bulk Carrier, Katni was illegally mixing kerosene oil in the diesel in the godown situated at Jalpa Ward (Purana Tilak Ward), Katni, S.H.O. P.S. Katni, Anil Vaidya along with Food Inspector R.P. Sharma, S.K. Tiwari and Pramod Pandey and other members of police force went to the spot, where they found tanker bearing registration no. MOJ-7878 filled with blue kerosene oil and tankers bearing registration nos. MP21-7161, MP 21-7155 and MP 21-7050 filled with diesel standing there. The seals of all four tankers were tempered and applicants/accused no.1 to 4 Kamlesh, Vrindavan, Tejilal Sahu and Ramji, Manager of the said firm were present there and were mixing blue kerosene oil from tanker no. MOJ-7878 into the diesel of tanker no. MP 21-7155. Applicant no.4 Ramji informed the raiding party that the godown was owned by applicant no.5 Balmukund. Firm M.B.M.C. Bulk Carrier Katni runs the business of transporting diesel and furnace oil and they were mixing the blue kerosene oil in diesel at the instance of applicant no.5 Balmukund. On that, R.P. Sharma, Food Inspector took samples from all four tankers and seized all four tankers and two Electric Motors with the help of which the kerosene oil was being transferred from tanker no. MOJ-7878 to tanker no. MP 21-7155 in which the diesel was already filled and also seized 26000 liters of diesel and 6000 liters of blue kerosene oil. He also prepared the memo of the action taken on the spot and lodged the report of the incident at P.S. Katni and also sent the report of the incident to the Collector Katni. On that, police registered Crime No.376/1999 for the offence punishable under Section 420 of the IPC and Section 6A and 3/7 of the Essential Commodities Act, for contraventions of clause 3(1),3(2) and 5 of The Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1990, clause 3(1)and 3(2) of Kerosene (Restriction on Use and Fixation of Sealing Price) Order, 1993(for brevity "the Order 1993) and clause 3(1) of M.P. Kerosene Dealers (Licensing) Order, 1979 (for brevity "the Order" 1979). Police also sent the samples to laboratory for chemical analysis from where the report to the effect that the sample of diesel taken out from tanker no. MP 21-7155 was found adulterated and seized kerosene was blue in colour was received. After investigation, police filed a charge sheet against present applicants and Gopal Das (who died during the pendency of Revision) before the JMFC Katni.
(3.) Learned JMFC by order dated 5/2/2004 discharged the applicants observing that according to clause 4 of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution Prevention of Malpractices) Order, 1998 (for brevity "the Order 1998") only the gazetted officer of Central and State and D.S.P. can take the sample of diesel, Food Inspector has no authority to take the sample likewise prosecution did not sent the analysis report of seized diesel and kerosene to the applicants, and did not send samples for reanalysis and a valuable right of the applicants was denied by the prosecution. So from the charge sheet, cognizance for the offences punishable under Section 3/7 of the Essential Commodities Act can not be taken against the applicants and the offence under Section 420 of the IPC is also not made out from the charge sheet. Being aggrieved from that order, the State filed Cr.R.no.2/2007 before the Sessions Court, which was disposed of by the Special Judge vide order dated 08/08/2007 whereby the learned Special Judge set aside the order passed by JMFC Katni and remanded the case back to JMFC with the direction to again pass a fresh order that after hearing both the parties. Being aggrieved by that order the applicants filed this revision.;

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